A Bad Place To Be

February 16, 2010

The Voting Rights Act of 1965 “was one of the great moments in the history of American democracy” and “the death knell of the Jim Crow South.” Over the years, however, it has been twisted into an engine of racial rigging and polarization. This has been accomplished by misguided judges, unwise and self-serving congressional Republicans (as well as Democrats), and liberal ideologues in civil rights groups and the Civil Rights Division of the Department of Justice. Indeed, those forces have transformed the Voting Rights Act into “a brake on true racial progress today.”

That is the essence of the story told by Abigail Thernstom in her meticulously researched and forcefully argued book. President Obama’s success in winning white votes has completed the proof that the white racism which the sixty-four-year-old law was designed to combat has become a marginal factor in American politics. And the Voting Rights Act, which has come to be little more than a racial gerrymandering machine, has become “a barrier to greater integration” of our politics. Yes, we still have glaring racial inequalities rooted in our history of slavery and racism. About this there can be no doubt. But “the caste system that originally justified taking race into account in structuring elections is gone,” Thernstrom concludes, and “further progress demands that we now cease to take race into account.”

More liberal experts—including virtually the entire civil rights establishment—argue forcefully that the Voting Rights Act still has much work to do. Thernstrom does not deny that isolated bastions of white racism and bloc voting remain, especially in “pockets of the rural South.” But the evidence that she marshals largely supports her conclusion that in today’s world race-based districting is rarely if ever a necessary remedy. “Integration was the aim of the civil rights movement in the 1950s and much of the 1960s, and, by the ultimate test, American politics is now integrated,” she observes. “Blacks have been a major force in American politics for decades, and now they have reached its highest peak.”

Thernstrom is among the nation’s most distinguished scholars on racial issues. She is a conservative, but not a reflexive one; and she is certainly not aRepublican apologist. Unlike Clarence Thomas, for example, Thernstrom acknowledges that merely insuring that blacks could register and cast ballots without being disenfranchised by discriminatory literacy tests and other gimmicks—which was all that the original Voting Rights Act specifically required—was not enough. It was also essential, she says, to insure the election of respectable numbers of blacks to office. In the South, entrenched white racists were determined to make blacks’ newly protected voting rights meaningless by devices such as submerging them in newly created at-large districts dominated by white racial bloc voting. And so race-based districting was the only way to make black votes count in the first decade or more after 1965. Thernstrom also shows why the extraordinarily intrusive federal supervision of state and local election rules required by Section 5 of the Voting Rights Act was initially essential to prevent white racists from finding new ways to disenfranchise blacks. “Only a federal sledgehammer could break open a southern political system barricaded against black entrance,” she writes.

At the same time, she expresses deep ambivalence about a historical irony that she sometimes seems to regard as a historical inevitability: the use of the Voting Rights Act to force creation of majority-black and majority-Hispanic districts would evolve into a federal mandate for unrestrained racial gerrymandering to elect as many minority representatives as possible at all costs, even absent proof of white racism. Such bias really is not the main problem with democratic representation today, as Thernstrom demonstrates. She cites massive evidence—including the statewide elections of minority senators and governors and, in 2008, the election of a black president—that districts no longer need to be specially rigged to insure racial fairness. The main problem now is that a left-right alliance of convenience has pushed race-based districting to extremes even as the need for it has diminished.

What harm could there be in maximizing black and Hispanic representation? Thernstrom has four compelling answers to this perfectly reasonable question: racial polarization; ideological polarization; limiting black and Hispanic political horizons; and instilling unwarranted pessimism in many blacks about the opportunities that are open to them.

First, such gerrymanders perpetuate racial polarization by balkanizing the electorate into black-dominated, Hispanic-dominated, and more numerous white-dominated districts that have been “bleached” by the removal of most, or at least many, black and Hispanic voters. This encourages politicians to appeal only to members of their own race, and puts the law’s imprimatur on the pernicious notion that it is only natural for voters to split along racial lines. In this way it perpetuates the poison of racial politics by encouraging minorities to practice the same kind of racial bloc voting that is seen as racist when done by whites.

Black and to a lesser extent Hispanic voters are more liberal than whites on average; racial gerrymandering almost guarantees election of the most left-wing of Democrats in majority-minority districts and the most right-wing of Republicans in bleached districts. The losers in this game are centrist politicians who do better in districts more representative of the electorate as a whole, and the plurality (if not majority) of voters who prefer centrist politics.

Third, racial gerrymandering “impedes black progress in significant ways.” Majority-minority districts have traditionally had to be as much as 65 percent black or Hispanic—given relatively low minority turnout—to guarantee election of black or Hispanic representatives. So majority-minority districts are outnumbered by the new bleached districts. As a result, racial gerrymandering has led to a net loss of Democratic congressional seats—an estimated twelve seats in 1994 alone—to Republicans who have little incentive to court mostly Democratic minority voters. For this reason, electing black and Hispanic representatives is not always good for black and Hispanic voters. The lack of competition in gerrymandered districts has also fostered apathy among minority voters, further depressing turnout. And the politicians who win those districts are often too far left of center to have much clout in legislative bodies or much chance in statewide elections.

And fourth, by thus creating “a black political class too isolated from mainstream political discourse,” Thernstrom remarks, racial gerrymandering has “further exacerbated the tendency of African-Americans to see themselves as a permanent minority separated from the American dream.” This, together with “the congressionally sanctioned narrative of an America still steeped in white racism,” feeds pessimism among blacks about their own opportunities for success, both in politics and in other realms. Such pessimism is unwarranted, Thernstrom insists. Witness the widespread certitude among black voters at the outset of Barack Obama’s presidential campaign that white America was too racist, manifestly or latently, to elect a black president. This proved spectacularly wrong when a higher percentage of whites (43 percent) voted for Obama in 2008 than for the 2004 Democratic nominee, Senator John Kerry (41 percent).

How did we come to this pass? And what explains the persistence of racial gerrymandering decades after the costs to the nation began to exceed the benefits?

Thernstrom answers these questions with a wealth of historical detail, which I find persuasive but less well organized than it could have been. By jumping forward and backward in time in order to organize her book on a topical basis—e.g., a chapter on Section 5 extending to 2006, followed by a chapter on Section 2 focusing on the 1982 amendments—she impedes the flow of her interesting narrative and falls into considerable recapitulation. But this is a relatively minor flaw in a masterful analysis.

Thernstrom writes that in 1964, “the majority of blacks remained unable to cast ballots in almost every Southern state,” due to legal barriers, social coercion, and violent intimidation, including the murders of civil rights activists. The Voting Rights Act changed that almost immediately, most dramatically in Mississippi, where black registration soared from 7 percent in 1964 to about 60 percent in 1966. The heavy lifting was done by the Justice Department’s Section 5 power, which defeated the ingenious ploys that Southern power structures had for many years used to disenfranchise blacks. Section 5 requires that racially suspect states and counties (“covered jurisdictions”) obtain permission (“preclearance”) from the Justice Department (or a special federal court) before making any change in voting qualifications or election procedures.

Section 5’s coverage was originally limited to Alabama, Georgia, Louisiana, Mississippi, South Carolina, Virginia, and most counties in North Carolina, based on a statistical formula well-designed to identify places where blacks had been disenfranchised. “Preclearance” was granted only if the jurisdiction could prove the proposed changes to be untainted by racism. In 1969, however, the Supreme Court vastly expanded the scope of Section 5—initially intended mainly to protect blacks’ rights to register and cast ballots—in Allen v. State Board of Elections.

Mississippi, which Thernstrom calls “the most racist of all racist states,” had blocked blacks from being elected to local office by amending state laws to replace single-member districts, some of which had black majorities, with countywide elections. This insured that white bloc voting would doom black candidates to defeat. The justices responded by diving into the complex terrain of preventing covered jurisdictions from thus “diluting” black voting power. Thernstrom applauds this result. But she also laments it as a first step in the transformation of the act into a mandate to manipulate voting district lines in pursuit of the manipulators’ notion of fair apportionment of political power among racial groups. Meanwhile, the Supreme Court’s one-person-one-vote decisions essentially required the redrawing of every voting district in the country every ten years, with the Justice Department wielding veto power and increasingly committed to race-based districting.

Section 5 was originally set to expire the year after Allen, on the assumption that by 1970 such extraordinary federal oversight would no longer be needed to overcome massive white resistance and thus would become constitutionally suspect. But Congress extended Section 5 in 1970 and repeatedly thereafter—most recently in 2006, until 2031. “The emergency of black disenfranchisement has come to be treated as near permanent—even in an era when an African American can be elected president,” Thernstrom concludes.

In 1970 and in 1975, Congress also expanded the law well beyond its original purpose of combating racism in the Old South. The amendments banned all literacy tests nationwide, whether or not designed to disenfranchise blacks. They extended the law’s protection to Hispanic and other “language minorities”—despite the paucity of evidence of governmental efforts to deny them the right to vote—as well as less numerous Asian Americans, American Indians, and Alaskan Natives. They classified English-only ballots as language discrimination. And they changed the statistical trigger to extend Section 5’s coverage to Texas, Arizona, and scattered counties in other states that had nothing like the deep South’s egregious history of minority disenfranchisement.

The transformation of the Voting Rights Act into a racial gerrymandering machine got a big impetus in 1982. A massive lobbying effort by civil rights groups persuaded Congress to revolutionize the meaning of the previously insignificant Section 2, which unlike Section 5 covers the entire country. The 1982 amendments made a dead letter of a 1980 Supreme Court decision that required plaintiffs in voting rights lawsuits under the Fourteenth Amendment equal protection clause to prove intentional discrimination. By amending Section 2 to authorize lawsuits based on unequal “results,” Congress allowed voting rights plaintiffs to bypass the equal protection clause and its tougher burden of proof. The civil rights groups’ objective was to require states and localities all over the country—even in areas with no history of racist disenfranchisement—to draw as many majority-minority election districts as possible, in pursuit of proportional representation in all legislative bodies. And the groups got most of what they wanted, some from Congress, the rest from the courts.

The new Section 2 guaranteed equal opportunity for minorities “to participate in the political process and to elect representatives of their choice,” and specified that the number of minority representatives elected “is one circumstance which may be considered.” This language doomed at-large voting systems even if they were rooted in good-government reforms. It could also be seen as requiring pursuit of proportional representation based on race. That was where most liberals wanted to go, and also the most obvious easy-to-apply standard now that the law had gone beyond remedying real discrimination and had started apportioning political clout based on race. It is true that Congress added a compromise proviso stating that the new Section 2 did not establish a right for minorities to be “elected in numbers equal to their proportion of the population”; but civil rights groups, the Justice Department, and the Supreme Court brushed past the proviso, ignored the corresponding legislative history, and read Section 2 essentially as requiring pursuit of racial proportionality.

The key decision was Thornburgh v. Gingles, in 1986. Justice William Brennan’s majority opinion held that if the evidence established that whites voted as a bloc in a jurisdiction, and that black voters were politically “cohesive,” then the Voting Rights Act required drawing as many reasonably “compact” majority-black and majority-Hispanic voting districts as possible. And this formula could apply almost everywhere, at least in the South, especially when lower court judges followed a section of the Brennan opinion that commanded only a plurality of four. In that section Brennan redefined white bloc voting as being present whenever most whites vote down the candidates preferred by most blacks—even if the reason is political ideology, not race. This meant that if most whites vote Republican and most blacks vote Democratic, as is now typical across the South, this alone would establish both white bloc voting and black political cohesiveness. So Brennan’s opinion effectively required the drawing of as many “geographically compact” majority-minority districts as possible.

Some lower courts soon dispensed with the “compactness” requirement as “a relative term” (as one judge put it) that could be stretched to draw bizarrely shaped districts wherever possible to scoop in a safe majority of blacks (or Hispanics). Some of these districts stretched hundreds of miles and were little wider at many points than a highway, or used finger-like extensions to pull middle-class minorities who had moved to the suburbs into inner-city poor districts.

The Justice Department’s Civil Rights Division, collaborating closely with civil rights groups, used its vast Section 5 power to insist on heavy-handed racial gerrymandering to create odd-shaped districts, especially during the decennial redistricting after the 1990 census. In the process, the division brushed aside Supreme Court precedents ruling that the division had Section 5 power to pre-clear only changes in state or local rules that reducedminority representation. The division insisted instead on “max-black” changes to increase the number of majority-minority districts whenever district lines were redrawn. It even treated a state’s failure to draw the maximum possible number of majority-minority districts as proof of “a discriminatory purpose.” In short, federal bureaucrats were routinely intruding deep into state and local electoral processes, even absent evidence of racism, to demand the manipulation of district lines to elect enough blacks and Hispanics to satisfy de facto racial quotas.

This approach, which Thernstrom plausibly calls “lawless,” was in keeping with the ideology shared for decades by the vast majority of career lawyers in the Civil Rights Division. In Thernstrom’s words, they “see themselves as valiant defenders of civil rights holding the line against pressures from opponents of race-based districting and other race-conscious politics” and are quick to attribute such opposition to racism. The career lawyers’ politically appointed bosses in the first Bush Justice Department were glad to go along. By taking pro-racial-gerrymandering positions philosophically at odds with the anti-quota rhetoric that Republicans espoused in other areas of the law, these political appointees helped to engineer a net gain in districts designed for Republicans.

In fact, most state and local officials would have weighed race as one of many political factors if left to their own devices. But the Civil Rights Division’s power left them little choice but to make race the dominant consideration. The results included fourteen new black-majority House districts between 1990 and 1992, all but two in the South, many of them bizarrely shaped and surrounded by Republican districts.

In the early 1990’s, the Supreme Court began to resist the stampede toward racial proportionality at all costs that its own decision in Gingles decision had helped set in motion. This reflected the replacement in 1991 of the passionately liberal Thurgood Marshall by the arch-conservative Clarence Thomas. But rather than clarifying or overruling Gingles, the conservative justices chose—unwisely, in Thernstrom’s view—to advance a novel and problematic interpretation of the equal protection clause, one that put it on a collision course with the Gingles interpretation of the Voting Rights Act.

Justice Sandra Day O’Connor’s opinion for the 5-4 majority in Shaw v. Reno, in 1993, likened North Carolina’s bizarrely shaped race-based congressional districts to “political apartheid” and sent the case back to the lower courts to determine whether the districts were an unconstitutional effort to “segregate” voters based on race. Such extreme racial gerrymanders, O’Connor wrote, threaten “to balkanize us into competing racial factions,” contrary to the Fourteenth and Fifteenth Amendments’ goal of “a political system in which race no longer matters.” They also reinforce “the perception that members of the same racial group—regardless of their age, education, economic status, or the community in which they live—think alike, share the same political interests, and will prefer the same candidates at the polls.”

The justices used a similar rationale in 1995, in Miller v. Georgia, to strike down the extreme racial gerrymander that the Georgia legislature had adopted—at the insistence of the Civil Rights Division—in redrawing that state’s congressional districts. Justice Anthony Kennedy’s majority opinion whacked the Civil Rights Division for “a serious intrusion on the most vital of local functions” and for having “expanded its authority . . . beyond what Congress intended” in order to impose an "implicit command that states engage in presumptively unconstitutional race-based districting." Subsequent decisions struck down racially gerrymandered congressional districts in North Carolina Texas, and Louisiana.

The conservative justices’ diagnosis was correct but their remedy was problematic, spurring cogent criticisms from thoughtful scholars as well as a firestorm of hyperbolic attacks from civil rights groups. As Thernstrom points out, a regime in which one powerful federal authority (the Supreme Court) finds states in violation of the Constitution for complying with the demands of another powerful federal authority (the Civil Rights Division) was not easy to square with the conservative justices’ professed respect for states’ rights and judicial restraint.

Meanwhile Justice O’Connor was becoming less reliably conservative in race cases. One result was that the Shaw-Miller line of cases fizzled out in 2001, when she switched sides and voted with the Court’s four liberals to uphold a racial gerrymander very much like the ones that she had assailed in Shaw and Miller. Her explanation was that in the new case, Easley v. Cromartie, it was not clear that race, rather than partisan politics, was the legislature’s predominant motive. The new majority’s new message was clear: if you want racial gerrymanders, camouflage them as partisan gerrymanders. And then the Court’s balance shifted yet again. In early 2006, President Bush appointed Samuel Alito, a consistent conservative, to succeed O’Connor. Now there are five justices who generally share Thernstrom’s view that “in a society that is genuinely open to black opportunity, colorblind principles have no moral competition.”

Huge bipartisan majorities of Congress adopted a dramatically different view in the Voting Rights Act amendments of 2006. Congress extended and amended Section 5 in ways that seemed to presuppose a vision of the South as a place where racism is “more subtle” than in 1965, but “the effects and results are the same,” in the words of the House Judiciary report. It said that states were poised to “effectively shut minority voters out of the political process.” The bill itself warned that without Section 5, minorities would be deprived of “their right to vote,” as if white supremacists were poised to take over the South again as soon as the Section 5 cop is off the beat

Civil rights groups thoroughly dominated the legislative process, spoon-feeding what Thernstrom calls “fear-mongering nonsense,” reflecting “deliberate blindness to current reality,” to the Republican-controlled Congress. It extended until 2031 Section 5’s tight, supposedly temporary federal control over every aspect of the election process in the South and other covered jurisdictions. Instead of taking into account the vast racial progress of all covered states, Congress made Section 5 even more intrusive. It overruled two Supreme Court precedents limiting the Civil Rights Division’s Section 5 powers. It kept under the federal thumb the same "covered jurisdictions" that it had designated decades before, while adding no new ones. And it ensured the continued unworkability in practice of the theoretical right of covered jurisdictions to "bail out" of Section 5 coverage if their racial records in recent years were clean. All this despite data suggesting that many covered jurisdictions have done a better job of getting minorities to the polls and elected as representatives than many states and other jurisdictions that have never been covered.

Congress adopted as its own fact-findings a massive record, compiled by civil rights groups with axes to grind, of incidents supposedly showing violations of minority voting rights in the South and other covered jurisdictions, and a need for an extended and fortified Section 5. Thernstrom draws on the work of other leading scholars who could hardly be called conservative to argue that there is less to these findings than meets the eye. New York University Law School’s Samuel Isaacharoff, for one, has stressed “the basic absence of a record of willful exclusion of the sort that could easily be marshaled in 1965 and even in 1982.”

Two major Supreme Court cases in 2009 illustrated the building tension over the Voting Rights Act between the newly conservative Supreme Court and the Democrats who had taken control of Congress and the presidency. On March 9, in Bartlett v. Strickland, the justices cut off a push by liberal groups to add a new mandate that states and localities manipulate district lines to draw black and Hispanic “crossover” districts in areas where it was not possible to draw more majority-minority districts. Crossover districts include sufficient minorities of black or Hispanic voters to form coalitions with like-minded white Democrats in order to elect the candidates preferred by blacks or Hispanics—all of them Democrats. “This position, if adopted by the [Supreme] Court,” writes Thernstrom, “would have completed the transformation of the Voting Rights Act from a law designed to protect blacks from racial animus in politics—providing equal political opportunity—to one intended simply to maximize African-American political power by whatever means, while augmenting Democratic Party power as well.” She applauds Justice Kennedy’s ruling for a 5-4 majority that while states are free to choose crossover districts, reading the Voting Rights Act as mandating such districts would “unnecessarily infuse race into virtually every redistricting, raising serious constitutional concerns.”

Later, as Thernstrom’s book was going to press, the conservative justices seemed poised to uphold a challenge to the constitutionality of Section 5, as amended and extended in 2006, which would have precipitated a congressional firestorm. But the June 22 decision in Northwest Austin Municipal Utility District v. Holder was doubly surprising. First, the four liberals (and all the conservatives but Thomas) joined Chief Justice Roberts’s majority opinion, including his assertion that Section 5 “imposes substantial ‘federalism costs’ ” and had become so problematic that it "raises serious constitutional questions." Second, and not coincidentally, eight justices (all but Thomas, who would have struck down Section 5) sidestepped these questions by ruling that the utility district was eligible to seek a "bailout.” The message to Congress was clear: we stepped back from the brink this time, but unless you make Section 5 less onerous on the many covered jurisdictions with no recent history of racist election rules, we may strike it down the next time.

Where this will lead remains to be seen. Meanwhile Thernstrom’s book is the best guide to where we are now, how we got here, and why it is a bad place to be.

Stuart Taylor, Jr. is a columnist for National Journal and aNewsweek contributor.